FEDERAL COURT OF AUSTRALIA

Yusuf v Minister for Immigration & Multicultural Affairs [1999] FCA 1053

FATHIA MOHAMMED YUSUF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 220 of 1999

FINN J

21 JULY 1999

MELBOURNE

THE COURT DIRECTS THAT:

              1.       the parties bring in draft minutes of orders and directions to give effect to these reasons.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Refugee Review Tribunal under Part 8 of the Migration Act 1958 (Cth) (“the Act”), in which the Tribunal was not satisfied that the applicant, Fathia Mohammed Yusuf, and her two children were refugees.  Though there are in fact three applicants, I will in these reasons refer only to “the applicant” for the purposes of identifying Ms Yusuf.

2                     The background circumstances and the decision of the Tribunal can be outlined relatively briefly.  The applicant is a Somali national whose claims for a protection visa are based on race and membership of a particular social group.  She is from Mogadishu and of the Abaskul clan.  It is in relation to her clan membership that her apprehensions in relation to persecution arise.

3                     The applicant arrived in Australia illegally in February 1999, and lodged an application for a protection visa that month.  The applicant has remained in detention since her arrival.  Accompanying her application was a statement which referred, amongst other things, to the causes of her apprehension: 

“About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband.  My husband was able to run away with the help of a neighbor [sic].  My husband had to run away and to date I don’t know if he is alive or where he is.

On one occasion I went to purchase food for my children.  People from the Hawiye clan attacked me.  They put a sword on my chest, near my neck and they cut me.  I still have the scar.  I was lucky that my neighbors saw this attack and they came and saved me from these people.  I was lucky that the neighbors who were Hawiye saved me otherwise I would have probably been killed.

On another occasion a group of women from the Hawiye attacked me as I was shopping near our house.  I received cuts to my head and face and I still feel the pain from the injuries.  My neighbors who saw the incident once again came to my rescue as they heard me shouting and crying.  They told me to go back home and I was not to leave my house again as I could get killed.

…

If I am returned to Somalia I would probably be killed, as there is no one in Somalia who can protect me.  My clan is a small defenseless clan and as a result there is no where [sic] in Somalia where we can settle.  In Somalia there is no government and there are no authorities that could protect me.  If I am returned there my children and I will probably be killed.  It is because of the fact that we have no one to protect us and because of the persecution we face in Somalia as members of the Abaskul clan that I am seeking protection from the Australian government.”

4                     I would emphasise in relation to that statement that three specific events are referred to in each of the first three paragraphs referred to.  Secondly, I would also emphasise, as is evident in the last sentence of the quotation, that it is clan membership which provides the basis for the fear of persecution.  A supplementary statement was prepared by the applicant dated 22 February:

“Last time when I prepared my statement with my solicitor I was not feeling well.  I was also concerned as another person was caring for my children whilst I was with my solicitor and they are used to be [sic] with me all the time.  Because of those reasons as well as due to the fact that I am going trough [sic] some very stressful times I forgot some things that have happened to me.  Furthermore, another detainee translated my statement to me and I found out that the interpreter did not translate everything I have told my solicitor.  Because of these reasons I want to make a further statement and amend my previous statement.

…

In early 1991 my sister and three of her children were killed.  The Hawyee [sic] people attacked her house and they threw a bomb through the window.  They attacked their house as they were from the Abaskul clan.  The only survivors were one child and my brother-in-law.  My brother-in-law and the child survived as at the time they were in hiding and not in the house at the time of the attack.  The surviving child was with his father as he was older than the others that remained behind with their mother.  Tradition required me to marry my sister’s husband, which is what I did.

Further to my previous statement I would like to add that the neighbors who protected us from the Hawyee have told us to leave Somalia as they could no longer protect us.  They were afraid for their lives as they could be killed because they helped us.”

5                     When the application came before the Minister’s delegate, the delegate obtained information from the Department of Foreign Affairs and Trade concerning the situation of the Abaskul clan in Somalia and in Mogadishu.  The terms of that statement insofar as presently relevant are as follows:

“A1.    The Abaskul are a sub clan of the Darod.  The region they are most commonly associated with is the 5^th region of Ethiopia (South Eastern Ethiopia) although members of the clan also live in other areas of Somalia including in the area which borders Ethiopia.  Mogadishu has attracted settlers from all regions of Somalia.  It can be expected that some members of the Abaskul clan would live there and this would not be unusual.

A2.      An Abaskul, as a member of minority clan in Mogadishu, is at a disadvantage when it comes to securing a job or access to housing for example and would be at a disadvantage in the event of a dispute with a member of a more powerful clan such as the Hawiye.  This is a situation in which all minority clan members find themselves so it is not peculiar to the Abaskul.  The Abaskul are not the target of the Hawiye, or any other clan, because of their clan affiliation.

A3.      The Abaskul are traditionally nomadic herdspeople who tend flocks of camels and goats although nowadays some have moved to other occupations.

COMMENT

It is unlikely that the applicant would have experienced attacks from members of the Hawiye clan for the reason that the applicant is a member of the Abaskul clan.  There is a complex relationship between different clans and to confuse the matter further intermarriage between clans is not unusual.  In a given region, a particular clan may be higher up the social pecking order than another.  This does not mean that higher ranked clan members will physically attack a member of a lower ranked clan simply because of the person’s clan affiliation.  To illustrate the peculiarities of Somali life the most intense fighting in Mogadishu at the moment occurs between two warlords who both belong to the same branch of the Hawiye clan.

It is worth noting that there are other areas of Somalia where the Abaskul are more prominent.”

The Application for a Protection Visa 

6                     After the delegate’s decision refusing Ms Yusuf’s application, she appealed to the Tribunal.  She gave evidence by interpreter to the Tribunal, to which it will be necessary later to refer in these reasons.

7                     I now turn to the Tribunal’s decision.  In referring to the matters that grounded the applicant’s apprehension, the Tribunal noted the following:

“She said that she rarely ventured outside after the commencement of the civil war, but that on two particular occasions when she did so, she was soon after attacked by members of the Hawiye clan.  She claims that the attacks on her occurred because the Hawiye clan was antagonistic to her own clan.  She said that the first attack occurred a long time ago and that the second attack occurred about 20 months ago.  She claims that she received several wounds in the attacks upon her as her assailants had swords and knives.  She said that on each occasion she was assisted by neighbours who, like her attackers, were also of the Hawiye clan.  She said that her husband ran away with the help of a neighbour and she does not know where he is now.  She said that she would be alone and vulnerable if she were returned to Mogadishu.  She claims that her Hawiye neighbours suggested that she leave Somalia as they would be unable to protect her in the future.

The applicant claims that due to their membership of the Abaskul clan a sister and her three children were killed by Hawiyes in a bomb attack on their house in early 1991.  She said that two other family members survived the attack because they were not at home at the time.  She said at the hearing that she did not make all her claims at the outset as she was tired and her adviser said that she could take a rest and make later claims.  She added that she tried to repress what had happened to her sister and her children.  In a statement of 22 February 1999 the applicant said that she was unwell when preparing her initial statement and she was concerned about her children who were in the care of another person at the time.”

8                     In discussing the evidence and making its findings, the Tribunal set out the Department of Foreign Affairs and Trade advice I earlier referred to.  Importantly, in so doing it italicised the observation:

“The Abaskul are not the target of the Hawiye or any other clan because of their clan affiliation.”

9                     The Tribunal immediately went on to observe:

“In view of the aforementioned information, and bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers, the Tribunal concludes that the attacks against her were motivated by reasons other than race.  The Tribunal notes that the applicant has been generally free from any harm in Mogadishu notwithstanding the continuation of the civil war.  It notes, in particular, advice from DFAT that members of the Abaskul clan are not targeted by members of the Hawiye clan.  That information from DFAT and the fact that the applicant was rescued from further harm by Hawiye neighbours when she twice came under attack, leads to a conclusion that it was not the applicant’s clan membership that motivated the attacks upon her.”

10                  I would note that as in its narrative of the evidence, the Tribunal here does not refer to the attack upon her house or the circumstances of her husband’s departure to Mogadishu. 

11                  Additionally, the Tribunal noted:

“The applicant has provided no satisfactory explanation for omitting claims at the outset of her application for asylum that four family members were killed in a bombing incident in 1991.  The claim is of such significance that the Tribunal does not accept the applicant, having fled Somalia specifically in order to seek asylum, would then have omitted any allusion to it at all in the initial stage of her application.  In weighing all the material before it the Tribunal finds that the applicant has invented those claims.

Even if the claims were found to be true they do not establish a well-founded fear of persecution for a Convention reason.  That some family members were killed at the outbreak of a civil war does not indicate that the applicant, who remained in the same vicinity for almost a decade longer, would now or in the foreseeable future face a real chance of persecution for a Convention reason herself.”

In the event, as I have noted, the Tribunal found that the applicant and her children do not have a well-founded fear of persecution for a Convention reason. 

The application to this Court

12                  A number of grounds have been advanced before me which I will consider separately. 

1.         Section 476(1)(e):  Error of Law

13                  The alleged errors to which I need refer for the moment were:

“(a)     [The Tribunal] failed to properly interpret and/or apply the test of well-founded fear of persecution in treating the attacks on the applicant as isolated rather than as separate and in doing so failed to consider that a single incident can constitute persecution.

 (b)      It failed to properly interpret and/or apply the test of well-founded fear of persecution for a Convention-related reason by looking at the consequences of the attack upon her instead of its motivation and purpose in seeking to establish whether the persecution she feared was on Convention grounds.”

14                  The first of these is based on the use of the words “isolated occasions” when the Tribunal was describing the attacks suffered by the applicant.  The second relates to the Tribunal’s focus on her being assisted by Hawiye women after the attacks and in this, it is said, it failed to address the issues of motivation and purpose of the attacks.  In my view, both alleged errors are misconceived.  Bearing in mind that I should approach the statement of reasons in the fashion enjoined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, on a fair reading it seems to me the material which I have quoted, being first the DFAT advice and then the paragraph immediately following it, makes plain that the Tribunal did address the possibility of clan hostilities giving rise to fear of persecution on a Convention ground.

15                  The reference in the DFAT advice that the Abaskul were not the target of the Hawiye or any other clan because of their clan affiliation seems to me to be central to the Tribunal’s reasoning.  And the quotation that immediately follows makes plain that that advice provides the core, if I can so describe it, of its reasons for rejecting the clan-based claim of the applicant.  The matters which follow subsequently - the reference to the isolated occasions and the fact that Ms Yusuf was assisted by a Hawiye woman - appear to me properly to be used simply as being consistent with and supportive of the conclusion arrived at by the Tribunal.

16                  In making these observations I do not intend to cast doubt on decisions such as that of Hill J in Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 which properly reject the notion that for acts to constitute persecution they must be systematic.  An isolated act, no less than a systematic pattern of acts, is capable of giving rise to a well-founded fear of persecution for a Convention reason.  Here such was not the character attributed to the isolated acts actually dealt with by the Tribunal. 

2.         Section 476(1)(a):  Failure to Follow Procedures

17                  Here it is alleged that the relevant breach of section 476(1)(a) was a failure to follow the procedure prescribed in the Act.  The particular respects in which it is said a failure to comply with the procedures prescribed occurred are:

“[The Tribunal] failed to deal at all with the issue of whether or not ‘young women without male protection’ ‘married women’ or ‘women’ in Somalia constituted a particular social group and, if so, whether or not the applicant faced a well-founded fear of persecution by reason of her membership thereof.

(b)       having actual and constructive knowledge of the place of women in Somali society and/or the existence of information on this issue and that of violence against women, and the applicant’s evidence in relation thereto, it failed to make proper inquiries, in the exercise of its non-adversarial function, going to the substantive issue of whether or not ‘young women without male protection’ ‘married women’ or ‘women’ in Somalia constituted a particular social group and, if so, whether or not, the applicant faced a well-founded fear of persecution by reason of her membership thereof.

(c)        having placed before it for the first time at the hearing evidence of obvious significance and importance being the fact of the deaths of the applicant’s children and sister, it failed to at least consider obtaining a report on her psychological and/or psychiatric condition pursuant to s 427(1)(d) for the purpose of the proper conduct of the review.”

18                  As to ground (c), it is said that in the circumstances, an implied statutory duty existed to consider the obtaining of a report on the applicant’s condition under section 427(1)(d) and that the failure so to do constituted a failure of the type referred to in section 476(1)(a).  Section 427(1) of the Act provides:

“For the purpose of the review of a decision, the Tribunal may

…

            (d)        require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”

19                  In Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192, Foster J, by way of dictum, made the following observations:

“It will be observed that s 425(1)(b) of the Act empowers the tribunal to ‘obtain such other evidence as it considers necessary’ and that s 427(1)(d) provides it with the ancillary power of requiring ‘the Secretary to arrange for the making of any investigation … that the Tribunal thinks necessary with respect to the review …’.  The legislation, therefore, in my view, imposes upon the tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review.  A failure to enter upon this consideration would be reviewable error.  It may be, and I express no concluded view, that the section does not impose the obligation of consideration in all circumstances.  However, in a case such as the present, where information of obvious significance is provided for the first time to the tribunal then, in my view, the statutory obligation arises.  The tribunal must consider whether it wishes to obtain further relevant material.  The decision either to seek or not to seek such further material is probably not a reviewable decision for the reasons I have already given.  However, a failure to consider the question, at least where consideration was obviously called for, would, in my opinion, be an error capable of vitiating the review process and would be reviewable by this court under s 476(1)(a) of the Act.  This matter was not argued before me and I do not make it the basis of my present decision.”

However, in Kulwant Singh v Minister for Immigration and Ethnic Affairs, a decision of North J of this Court of 21 November 1996, in referring to s 427(1)(d) in the setting of a medical arrangement, his Honour made the following observation:

“In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination.  The section is permissive.  It gives the Tribunal a power.  The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised.  Thus, although a failure to consider whether to exercise a power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.”

20                  Subject to an observation which I will make shortly, I am of the view that the opinion and the observations of North J are clearly correct that the statute does not impose an implied obligation to consider the exercise of the power.  This is not to say that the Minister or Minister’s delegate or for that matter the Tribunal as the donee of the power is not, as a public official and as an holder of an office of public trust and confidence, obliged to consider whether or not a power so held ought be exercised.  There is a number of contexts in which such a duty to consider has been recognised in the public law of this country, but that duty is in my view one of common law origin.  It is not a duty prescribed by the Act or by the regulations for the purposes of section 476(1)(a).

21                  I would add in passing it is a duty which is in my view no different to the duty imposed in the private sector on persons holding powers in a fiduciary capacity, for example, as trustees and company directors.

22                  As to the failure to deal with the issue of the applicant being a woman and as such, having grounds for a well-founded fear of persecution by reason of her being a member of the class constituted by women, howsoever described - and I refer to the varying descriptions in the application - it seems to me that not only was the applicant not relying upon that reason for her fear of persecution, she, for practical purposes, expressly disavowed it in her oral evidence before the Tribunal:  see Transcript at 21 lines 11-25.  The applicant has submitted that irrespective of whether she in fact raised the question of her membership of such a class, and irrespective of whether the fear she actually entertained related to such membership, the Tribunal, as a specialist body, was obliged to consider that matter, given the evidence before it.  There are in my view several answers to that submission in this case.

23                  Notwithstanding the specialist character of the Tribunal and the obligations that may arise in consequence of that character to assist applicants where the evidence before the Tribunal is properly suggestive of grounds which actually do give rise to a well-founded fear of persecution or may well do so, the evidence in this case does not suggest that such was the case in relation to this applicant.  Moreover, there is a practical difficulty, given the terms of the Convention and the Protocol in that there must be a causal nexus between the fear entertained subjectively by the applicant and the Convention ground by reason of which that fear is engendered.  Such causal nexus does not exist in this case insofar as the applicant’s circumstance as a woman is concerned.  As I have indicated, the application is grounded upon membership of a clan and upon no other basis.  Accordingly, I do no consider the case to be made out under section 476(1)(a) in relation to any of the matters particularised in the application.

3.         The DFAT Advice

24                  Given the place this advice has taken in the Tribunal’s decision, the applicant not surprisingly has sought to attack it on the basis that it does not constitute evidence to which the Tribunal properly could have given weight in reaching its decision and this for the reason that, though taking the form of an advice, it does not contain the evidence upon which that advice was based.  I do not consider that the objection taken to this advice is one that could result in the decision of the Tribunal being set aside.  The advice might be bad advice; it may not.  It may be entitled to some or no weight in fact.  They are matters for the Tribunal to decide.  They are not matters for this Court to pass judgment upon.

4.         The Section 430 Statement of Reasons

25                  Leave was given to further amend the application to insert this particular ground.  At the outset of submissions, counsel for the applicant indicated that the Tribunal in its reasons dealt only with two of the three alleged incidents which gave rise to the applicant’s fear of persecution.  I have already indicated in passing that the Tribunal did not deal with the alleged attack on the house of the applicant.  While that attack in terms refers only to an actual attack on her husband, in giving oral evidence to the Tribunal the applicant appears to have included herself in the objects of that attack:

“I’ve had a lot of problems during my stay there … and my husband and myself were attacked and I was thrown somewhere.  I was put on something on my head, and that injure – wounded me here on the forehead, and after we have had to suffer attacks and the family who are protecting us have decided that at this time they are forced to take us out of the place where we were living because we cannot – ‘After this accident, we cannot guarantee your safety and we’ve had disputes along with the other people who were attacking you.’  So in that case my husband was taken by an armed man.  They took him out of Mogadishu, and so far I don’t know whether he’s safe or not.  I was pregnant at the time the family took my husband out of Mogadishu.  I don’t know whether he’s alive now or not.”

26                  It is in my view important to appreciate the significance of this matter.  It is the first of the matters relied upon in her initial statement.  It relates to the break‑up of her own family unit and to the departure of the person under whose protection she would ordinarily be and it occurs at a time relatively close to one of the other two occasions on which a personal attack has been made upon her.  It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution. 

27                  In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution.  There is a growing body of jurisprudence on what constitute “material questions of fact” to which the Tribunal must make reference in its reasons statement.  Section 430 of the Act in subsection (1) requires of the Tribunal as follows:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

            (a)        sets out the decision of the Tribunal on the review;  and

            (b)        sets out the reasons for the decision;  and

            (c)        sets out the findings on any material questions of fact;  and

            (d)        refers to the evidence or any other material on which the findings of fact were based.”

28                  In the decision of the Full Court of this Court in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at para 23, the Full Court observed:

“Finally, the Minister submitted that the RRT is not under an obligation to request a claimant to explain all of the material relied upon by the claimant or to deal with it:  see Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 at 645-647 per Tamberlin J and Fernando v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finn J, 5 November 1997) at 12.  The final submission of the Minister can be accepted in relation to evidence which is not ‘material’ to the questions of fact required to be determined by the RRT in discharging its functions and duties under the Act.  However, ss 430(1)(c) and (d) of the Act provide that the RRT ‘must’ in its written reasons for decision set out the findings on ‘any material question of fact’ and refer to the evidence or other material on which the findings were based.  Without endeavouring to state an exhaustive definition of materiality in the context of s 430(1)(c), as we later explain, the past events that have caused the claimant to fear a real chance of persecution for a Convention reason if returned to his or her country of nationality will plainly constitute ‘material questions of fact’ for the purposes of s 430(1)(c).”

29                  Likewise, in speaking of the alleged failure that occurred in the case before it, the Full Court said at paras 36-37:

“In the present case whilst it may have been open to the RRT to reject, or to give little or no weight to, the family harassment claim a failure to make a finding in relation to it is a breach of the requirements of s 430(1)(c).

In one sense a failure by the RRT to comply with s 430(1)(c) and (d) may be said to be a technical breach.  However, that approach misunderstands the significance of the section.  In Paramananthan at 25-28 Merkel J considered the duties of the RRT under the Act.  His Honour concluded that the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it.  That duty, in our view, is a fundamental incident of the statutory function of the RRT.  In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it:  see also Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22;  Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) at 13-14;  and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J.  The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.”

30                  In light of the observations of the Full Court and bearing in mind the apparent centrality of the attack upon the house to the events relied upon as founding the well-founded fear of persecution, it seems to me inevitable that I must conclude that the statement of reasons of the Tribunal is deficient in its failure to address this matter. 

31                  In saying this, I emphasise I express no view upon whether the Tribunal’s ultimate conclusion would in the event be different after it gave proper consideration to that matter.  What I am emphasising is that it was obliged to consider it and to make plain to the applicant why it was not accepted as having the effect claimed by the applicant, if such indeed was the case.  As the Full Court indicated in the quotation from Thevendram to which I have referred, a breach of section 430 may in a sense be technical.  Nonetheless, it is important if public confidence is to be maintained in the tribunal system, no less than in the system of the courts, that when a case is put to a tribunal or for that matter to a court, an unsuccessful party is entitled to an explanation as to why their case was not accepted.

32                  In the circumstances then, I consider I am obliged to allow the application.

Associate:

Dated: 4 August 1999